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JURY CHARGE

INTRODUCTION

MEMBERS OF THE ruRY, WE ARE NOW AT THAT STAGE OF THE TRIAL WHERE

YOU WILL SOON UNDERTAKE YOUR FINAL FUNCTION AS ruRORS. I KNOW YOU WILL

TRY THE ISSUES THAT HAVE BEEN PRESENTED TO YOU ACCORDING TO THE OATH

WHICH YOU HAVE TAKEN AS mRORS IN WHICH YOU PROMISED THAT YOU WILL

WELL AND TRULY TRY THE ISSUES IN THIS CASE AND RENDER A TRUE VERDICT. IF

YOU FOLLOW THAT OATH AND TRY THE ISSUES WITHOUT FEAR OR PREruDICE OR

BIAS OR SYMPATHY, YOU WILL ARRIVE AT A TRUE AND ruST VERDICT.

THE GOVERNMENT AS A PARTY

THE FACT THAT THE PROSECUTION IS BROUGHT IN THE NAME OF THE UNITED

STATES OF AMERICA ENTITLES THE GOVERNMENT TO NO GREATER CONSIDERATION

THAN THAT ACCORDED TO ANY OTHER PARTY TO A LITIGATION. BY THE SAME

TOKEN, IT IS ENTITLED TO NO LESS CONSIDERATION. ALL PARTIES, WHETHER

GOVERNMENT OR INDIVIDUALS, STAND AS EQUALS AT THE BAR OF ruSTICE.

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ROLE OF THE COURT

YOU HAVE NOW HEARD ALL OF THE EVIDENCE IN THE CASE AS WELL AS THE

FINAL ARGUMENTS OF THE LAWYERS FOR THE PARTIES.

MY DUTY AT THIS POINT IS TO INSTRUCT YOU AS TO THE LAW. IT IS YOUR

DUTY TO ACCEPT THESE INSTRUCTIONS OF LAW AND APPLY THEM TO THE FACTS AS

YOU WILL DETERMINE THEM, JUST AS IT HAS BEEN MY DUTY TO PRESIDE OVER THE

TRIAL AND DECIDE WHAT TESTIMONY AND EVIDENCE IS RELEVANT UNDER THE LAW

FOR YOUR CONSIDERATION.

ON THESE LEGAL MATTERS, YOU MUST TAKE THE LAW AS I GIVE IT TO YOU. IF

ANY ATTORNEY HAS STATED A LEGAL PRINCIPLE DIFFERENT FROM ANY THAT I

STATE TO YOU IN MY INSTRUCTIONS, IT IS MY INSTRUCTIONS THAT YOU MUST

FOLLOW.

YOU SHOULD NOT SINGLE OUT ANY INSTRUCTION AS ALONE STATING THE

LAW, BUT YOU SHOULD CONSIDER MY INSTRUCTIONS AS A WHOLE WHEN YOU

RETIRE TO DELIBERATE IN THE JURY ROOM.

YOU SHOULD NOT, ANY OF YOU, BE CONCERNED ABOUT THE WISDOM OF ANY

RULE THAT I STATE. REGARDLESS OF ANY OPINION THAT YOU MAY HAVE AS TO

WHAT THE LAW MAY BE -- OR OUGHT TO BE -- IT WOULD VIOLATE YOUR SWORN

DUTY TO BASE A VERDICT UPON ANY OTHER VIEW OF THE LAW THAN THAT WHICH I

GIVE YOU.

NOW, AFTER LISTENING TO MY INSTRUCTIONS ABOUT THE LAW, YOU WILL

THEN DETERMINE HOW THIS CASE SHOULD BE DECIDED.

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ROLE OF THE JURY (EVIDENCE AND NON-EVIDENCE)

AS I HAVE SAID, THE MEMBERS OF THE JURY ARE THE SOLE AND EXCLUSIVE

JUDGES OF THE FACTS. YOU DECIDE BASED UPON THE WEIGHT OF THE EVIDENCE;

YOU DETERMINE THE CREDIBILITY OF THE WITNESSES; YOU RESOLVE SUCH

CONFLICTS AS THERE MAYBE IN THE TESTIMONY, AND YOU DRAW WHATEVER

REASONABLE INFERENCES YOU DECIDE TO DRAW FROM THE FACTS AS YOU WILL

DETERMINE THEM.

IN DETERMINING THE FACTS, YOU MUST RELY UPON YOUR OWN

RECOLLECTION OF THE EVIDENCE. WHAT THE LAWYERS HAVE SAID IN THEIR

OPENING STATEMENTS, IN THEIR CLOSING ARGUMENTS, IN THEIR OBJECTIONS, OR IN

THEIR QUESTIONS IS NOT EVIDENCE. IN THIS CONNECTION, YOU SHOULD BEAR IN

MIND THAT A QUESTION PUT TO A WITNESS IS NEVER EVIDENCE. IT IS ONLY THE

ANSWER WHICH IS EVIDENCE. QUESTIONS ARE RELEVANT ONLY TO THE EXTENT

THEY ENABLE YOU TO UNDERSTAND THE ANSWER. NOR IS ANYTHING I MAY HAVE

SAID DURING THE TRIAL OR SUMMATIONS OR MAY SAY DURING THESE

INSTRUCTIONS WITH RESPECT TO A FACT MATTER TO BE TAKEN IN SUBSTITUTION

FOR YOUR OWN INDEPENDENT RECOLLECTION. WHAT I SAY IS NOT EVIDENCE.

THE EVIDENCE BEFORE YOU CONSISTS OF THE ANSWERS GIVEN BY THE

WITNESSES -- THE SWORN TESTIMONY THAT THEY GAVE FROM THE STAND, AS YOU

RECALL IT -- AND THE EXHIBITS THAT WERE RECEIVED IN EVIDENCE.

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YOU HAVE HEARD EVIDENCE IN THE FORM OF STIPULATIONS THAT CONTAIN

FACTS THAT WERE AGREED TO BE TRUE. YOU MUST ACCEPT THE FACTS IN THOSE

STIPULATIONS AS TRUE.

THE EVIDENCE DOES NOT INCLUDE QUESTIONS. ONLY THE ANSWERS ARE

EVIDENCE. BUT YOU MAY NOT CONSIDER ANY ANSWER THAT I DIRECTED YOU TO

DISREGARD OR THAT I DIRECTED STRUCK FROM THE RECORD. DO NOT CONSIDER

SUCH ANSWERS.

SINCE YOU ARE THE SOLE AND EXCLUSIVE WDGES OF THE FACTS, I HAVE NOT

MEANT AND DO NOT MEAN BY MY WORDS OR ACTS TO INDICATE ANY OPINION AS

TO THE FACTS OR WHAT YOUR VERDICT SHOULD BE. THE RULINGS THAT I HAVE

MADE DURING THE TRIAL ARE NOT ANY INDICATION OF MY VIEWS OF WHAT YOUR

DECISION SHOULD BE AS TO WHETHER OR NOT THE GUlL T OF THE DEFENDANT HAS

BEEN PROVEN BEYOND A REASONABLE DOUBT.

I ALSO ASK YOU TO DRAW NO INFERENCE FROM THE FACT THAT UPON

OCCASION I ASKED QUESTIONS OF CERTAIN WITNESSES. THESE QUESTIONS WERE

ONLY INTENDED FOR CLARIFICATION OR TO EXPEDITE MATTERS AND CERTAINLY

WERE NOT INTENDED TO SUGGEST ANY OPINIONS ON MY PART AS TO THE VERDICT

YOU SHOULD RENDER OR WHETHER ANY OF THE WITNESSES MAY HAVE BEEN MORE

CREDIBLE THAN ANY OTHER WITNESS. YOU ARE EXPRESSLY TO UNDERSTAND THAT

THE COURT HAS NO OPINION AS TO THE VERDICT YOU SHOULD RENDER IN THIS

CASE.

AS TO THE FACTS, LADIES AND GENTLEMEN, YOU ARE THE EXCLUSIVE

mDGES. YOU HAVE THE RESPONSIBILITY OF REVIEWING THE EVIDENCE, WEIGHING

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THE CREDIBILITY OF THE WITNESSES, SEPARATING THE IMPORTANT FROM THE

UNIMPORTANT, AND MAKING THE FACTUAL DETERMINATIONS WHICH BEAR ON THE

GUILT OR LACK OF GUILT OF THE DEFENDANT. YOU ARE TO PERFORM THE DUTY OF

FINDING THE FACTS WITHOUT BIAS OR PREJUDICE AS TO ANY PARTY.

COJ\'J)UCT OF COUNSEL

IT IS THE DUTY OF THE ATTORNEY FOR EACH SIDE OF A CASE TO OBJECT

WHEN THE OTHER SIDE OFFERS TESTIMONY OR OTHER EVIDENCE WHICH THE

ATTORNEY BELIEVES IS NOT PROPERLY ADMISSIBLE. COUNSEL ALSO HAVE THE

RIGHT AND DUTY TO ASK THE COURT TO MAKE RULINGS OF LAW AND TO REQUEST

CONFERENCES IN THE ROBING ROOM OR AT THE SIDE BAR, OUT OF THE HEARING OF

THE JURY. ALL THOSE QUESTIONS OF LAW MUST BE DECIDED BY ME, THE COURT.

YOU SHOULD NOT SHOW ANY PREJUDICE AGAINST ANY ATTORNEY OR HIS OR HER

CLIENT BECAUSE THE ATTORNEY OBJECTED TO THE ADMISSIBILITY OF EVIDENCE,

ASKED FOR A CONFERENCE OUT OF THE HEARING OF THE JURY, OR ASKED THE

COURT FOR A RULING ON THE LAW.

AS I ALREADY INDICATED, MY RULINGS ON THE ADMISSIBILITY OF EVIDENCE

DO NOT fl',1)ICATE ANY OPINION ABOUT THE WEIGHT OR EFFECT OF SUCH EVIDENCE.

YOU ARE THE SOLE JUDGES OF THE CREDIBILITY OF ALL WITNESSES AND THE

WEIGHT AND EFFECT OF ALL THE EVIDENCE.

DIRECT AND CIRCUMSTANTIAL EVIDENCE

NOW, THERE ARE TWO TYPES OF EVIDENCE WHICH YOU MAY PROPERLY USE

IN DECIDING WHETHER A DEFENDANT IS GUILTY OR NOT GUILTY.

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ONE TYPE OF EVIDENCE IS CALLED DIRECT EVIDENCE. DIRECT EVIDENCE IS A

WITNESS' TESTIMONY AS TO WHAT HE SAW, HEARD, OR OBSERVED. IN OTHER

WORDS, WHEN A WITNESS TESTIFIES ABOUT WHAT IS KNOWN TO HIM OF HIS OWN

KNOWLEDGE BY VIRTUE OF HIS OWN SENSES --WHAT HE SEES, FEELS, TOUCHES OR

HEARS -- THAT IS CALLED DIRECT EVIDENCE.

CIRCUMSTANTIAL EVIDENCE IS EVIDENCE WHICH TENDS TO PROVE ONE FACT

BY PROOF OF OTHER FACTS. THERE IS A SIMPLE EXAMPLE OF CIRCUMSTANTIAL

EVIDENCE WHICH IS OFTEN USED IN THIS COURTHOUSE.

ASSUME THAT A WITNESS TESTIFIED THAT WHEN HE CAME INTO THE

COURTHOUSE THIS MORNING, THE SUN WAS SHINING AND IT WAS A NICE DAY.

ASSUME HE TESTIFIED THAT SOMEONE WALKED INTO THE COURTROOM WITH

AN UMBRELLA WHICH WAS DRIPPING WET, AND THAT SOMEBODY ELSE WALKED IN

WITH A RAINCOAT WHICH WAS ALSO DRIPPING WET.

NOW, HE DOES NOT TESTIFY THAT HE LOOKED OUT OF THE COURTROOM AND

SAW THAT IT WAS RAINING. SO THERE IS NO DIRECT EVIDENCE OF THAT FACT. BUT

ON THE COMB INATION OF FACTS WHICH I HAVE ASKED YOU TO ASSUME, IT WOULD

BE REASONABLE AND LOGICAL - IF YOU FOUND THE WITNESS'S TESTIMONY TO BE

CREDIBLE - FOR YOU TO CONCLUDE THAT BETWEEN THE TIME HE TESTIFIED AND

THE TIME THOSE PEOPLE WALKED IN, IT HAD STARTED TO RAIN.

THAT IS ALL THERE IS TO CIRCUMSTANTIAL EVIDENCE. YOU INFER ON THE

BASIS OF REASON AND EXPERIENCE AND COMMON SENSE FROM AN ESTABLISHED

FACT THE EXISTENCE OR THE NONEXISTENCE OF SOME OTHER FACT.

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MANY FACTS, SUCH AS A PERSON'S STATE OF MIND, CAN RARELY BE PROVED

BY DIRECT EVIDENCE.

CIRCUMSTANTIAL EVIDENCE IS OF NO LESS VALUE THAN DIRECT EVIDENCE; IT

IS A GENERAL RULE THAT THE LAW MAKES NO DISTINCTION BETWEEN DIRECT AND

CIRCUMSTANTIAL EVIDENCE, BUT SIMPLY REQUIRES THAT BEFORE CONVICTING THE

DEFENDANT, THE JURY MUST BE SATISFIED THAT THE GOVERNMENT HAS PROVED

THE DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT AFTER REVIEW OF ALL OF

THE EVIDENCE IN THE CASE, DIRECT AND CIRCUMSTANTIAL.

DURING THE TRIAL YOU MAY HAVE HEARD THE ATTORNEYS USE THE TERM

"INFERENCE" AND IN THEIR ARGUMENTS THEY HAVE ASKED YOU TO INFER, ON THE

BASIS OF YOUR REASON, EXPERIENCE AND COMMON SENSE, FROM ONE OR MORE

ESTABLISHED FACTS THE EXISTENCE OF SOME OTHER FACT.

AN INFERENCE IS NOT A SUSPICION OR A GUESS. IT IS A REASONED, LOGICAL

DECISION TO CONCLUDE THAT A DISPUTED FACT EXISTS ON THE BASIS OF ANOTHER

FACT THAT YOU KNOW EXISTS.

THERE ARE TIMES WHEN DIFFERENT INFERENCES MAYBE DRAWN FROM

FACTS WHETHER BY DIRECT OR CIRCUMSTANTIAL EVIDENCE. THE GOVERNMENT

MAY ASK YOU TO DRAW ONE SET OF INFERENCES, WHILE THE DEFENSE MAY ASK

YOU TO DRAW ANOTHER. IT IS FOR YOU AND YOU ALONE TO DECIDE WHAT

INFERENCES YOU WILL DRAW.

THE PROCESS OF DRAWING INFERENCES FROM FACTS IN EVIDENCE IS NOT A

MATTER OF GUESSWORK OR SPECULATION. AN INFERENCE IS A DEDUCTION OR A

CONCLUSION WHICH YOU, THE JURY, ARE PERMITTED TO DRAW - BUT NOT
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REQUIRED TO DRAW - FROM THE FACTS WHICH YOU FIND TO BE PROVEN BY EITHER

DIRECT OR CIRCUMSTANTIAL EVIDENCE. IN DRAWING AN INFERENCE, YOU SHOULD

EXERCISE YOUR COMMON SENSE.

SO WHILE YOU ARE CONSIDERING THE EVIDENCE PRESENTED TO YOU, YOU

ARE PERMITTED TO DRAW, FROM THE FACTS WHICH YOU FIND TO BE PROVEN, SUCH

REASONABLE INFERENCES AS WOULD BE JUSTIFIED IN THE LIGHT OF YOUR

EXPERIENCE.

HERE, AGAIN, LET ME REMIND YOU THAT WHETHER BASED UPON DIRECT OR

CIRCUMSTANTIAL EVIDENCE, OR UPON LOGICAL OR REASONABLE INFERENCES

DRAWN FROM SUCH EVIDENCE, YOU MUST BE SATISFIED OF THE GUILT OF THE

DEFENDANT BEYOND A REASONABLE DOUBT BEFORE YOU MAY CONVICT.

CREDIBILITY OF WITNESSES

NOW, HOW DO YOU EVALUATE THE CREDIBILITY OR BELIEVABILITY OF THE

WITNESSES? YOU HAVE HAD AN OPPORTUNITY TO OBSERVE ALL OF THE

WITNESSES. IT NOW IS YOUR JOB TO DECIDE HOW BELIEVABLE EACH WITNESS WAS

IN HIS OR HER TESTIMONY. YOU ARE THE SOLE JUDGES OF THE CREDIBILITY OF

EACH WITNESS AND OF THE IMPORTANCE OF HIS OR HER TESTIMONY.

IT MUST BE CLEAR TO YOU BY NOW THAT YOU ARE BEING CALLED UPON TO

RESOLVE VARIOUS FACTUAL ISSUES UNDER THE INDICTMENT, IN THE FACE OF VERY

DIFFERENT PICTURES PAINTED BY THE GOVERNMENT AND THE DEFENSE WHICH

CANNOT BE RECONCILED. YOU WILL NOW HAVB TO DECIDE WHERE THE TRUTH LIES,

AND AN IMPORTANT PART OF THAT DECISION WILL INVOLVE MAKING JUDGMENTS

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ABOUT THE TESTIMONY OF THE WITNESSES YOU HAVE LISTENED TO AND

OBSERVED. IN MAKING THOSE JUDGMENTS, YOU SHOULD CAREFULLY SCRUTINIZE

ALL OF THE TESTIMONY OF EACH WITNESS, THE CIRCUMSTANCES UNDER WHICH

EACH WITNESS TESTIFIED, AND ANY OTHER MATTER IN EVIDENCE WHICH MAY HELP

YOU TO DECIDE THE TRUTH AND THE IMPORTANCE OF EACH WITNESS' TESTIMONY.

YOUR DECISION ON WHETHER OR NOT TO BELIEVE A WITNESS MAY DEPEND

ON HOW THE WITNESS IMPRESSED YOU. WAS THE WITNESS CANDID, FRANK AND

FORTHRIGHT? OR, DID THE WITNESS SEEM AS IF HE OR SHE WAS HIDING

SOMETHING, OR BEING EVASIVE OR SUSPECT IN SOME WAY? HOW DID THE WAY THE

WITNESS TESTIFIED ON DIRECT EXA\1INATION COMPARE WITH HOW THE WITNESS

TESTIFIED ON CROSS-EXAMINATION? WAS THE WITNESS CONSISTENT IN HIS OR HER

TESTIMONY OR DID HE OR SHE CONTRADICT HIMSELF OR HERSELF? DID THE

WITNESS APPEAR TO KNOW WHAT HE OR SHE WAS TALKING ABOUT AND DID THE

WITNESS STRIKE YOU AS SOMEONE WHO WAS TRYING TO REPORT HIS OR HER

KNOWLEDGE ACCURATELY?

HOW MUCH YOU CHOOSE TO BELIEVE A WITNESS MAY BE INFLUENCED BY THE

WITNESS' BIAS. DOES THE WITNESS HAVE A RELATIONSHIP WITH THE GOVERNMENT

OR THE DEFENDANT WHICH MAY AFFECT HOW HE OR,sHE TESTIFIED? DOES THE

WITNESS HAVE SOME INCENTIVE, LOYALTY OR MOTIVE THAT MIGHT CAUSE HIM OR

HER TO SHADE THE TRUTH? OR DOES THE WITNESS HAVE SOME BIAS, PREJUDICE, OR

HOSTILITY THAT MAY HAVE CAUSED THE WITNESS--CONSCIOUSLY OR NOT--TO GIVE

YOU SOMETHING OTHER THAN A COMPLETELY ACCURATE ACCOUNT OF THE FACTS

HE OR SHE TESTIFIED TO?

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EVEN IF THE WITNESS WAS IMPARTIAL, YOU SHOULD CONSIDER WHETHER THE

WITNESS HAD AN OPPORTUNITY TO OBSERVE THE FACTS HE OR SHE TESTIFIED

ABOUT AND YOU SHOULD ALSO CONSIDER THE WITNESS' ABILITY TO EXPRESS

HIMSELF OR HERSELF. ASK YOURSELVES WHETHER THE WITNESS' RECOLLECTION

OF THE FACTS STANDS UP IN THE LIGHT OF ALL OTHER EVIDENCE.

IN OTHER WORDS, WHAT YOU MUST TRY TO DO IN DECIDING CREDIBILITY IS

TO SIZE A PERSON UP IN LIGHT OF HIS OR HER DEMEANOR, THE EXPLANATIONS

GIVEN, AND IN LIGHT OF ALL THE OTHER EVIDENCE IN THE CASE, JUST AS YOU

WOULD DO IN ANY IMPORTANT MATTER WHERE YOU ARE TRYING TO DECIDE IF A

PERSON IS TRUTHFUL, STRAIGHTFORWARD, AND ACCURATE IN HIS OR HER

RECOLLECTION. IN DECIDING THE QUESTION OF CREDIBILITY, REMEMBER THAT

YOU SHOULD USE YOUR COMMON SENSE, YOUR GOOD JUDGMENT, AND YOUR

EXPERIENCE.

INTEREST IN OUTCOME

NOW, IN EVALUATING CREDIBILITY OF THE WITNESSES, YOU SHOULD TAKE

INTO ACCOUNT ANY EVIDENCE THAT THE WITNESS WHO TESTIFIED MAY BENEFIT IN

SOME WAY FROM THE OUTCOME OF THIS CASE. SUCH AN INTEREST IN THE

OUTCOME CREATES A MOTIVE TO TESTIFY FALSELY AND MAY SWAY THE WITNESS

TO TESTIFY IN A WAY THAT ADVANCES HIS OR HER OWN INTERESTS. THEREFORE, IF

YOU FIND THAT ANY WITNESS WHOSE TESTIMONY YOU ARE CONSIDERING MAY

HAVE AN INTEREST IN THE OUTCOME OF THIS TRIAL, THEN YOU SHOULD BEAR THAT

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FACTOR IN MIND WHEN EVALUATING THE CREDIBILITY OF HIS OR HER TESTIM01'-<'Y

AND ACCEPT IT WITH GREAT CARE.

THIS IS NOT TO SUGGEST THAT EVERY WITNESS WHO HAS AN INTEREST IN THE

OUTCOME OF A CASE WILL TESTIFY FALSELY. IT IS FOR YOU TO DECIDE TO WHAT

EXTENT, IF AT ALL, THE WITNESS' INTEREST HAS AFFECTED OR COLORED HIS OR HER

TESTIMONY.

GOVERNMENT EMPLOYEE WITNESS

YOU HAVE HEARD THE TESTIMONY OF GOVERNMENT EMPLOYEES. THE FACT

THAT A WITNESS MAYBE A GOVERNMENT EMPLOYEE DOES NOT MEAN THAT HIS OR

HER TESTIMONY IS NECESSARILY DESERVING OF MORE CONSIDERATION OR

GREATER WEIGHT THAN THAT OF AN ORDINARY WITNESS. ALSO IT DOES NOT MEAN

THAT HIS OR HER TESTIMONY IS NECESSARILY DESERVING OF LESS CONSIDERATION

OR LESS WEIGHT THAN THAT OF AN ORDINARY WITNESS.

IT IS YOUR DECISION, AFTER REVIEWING ALL THE EVIDENCE, WHETHER TO

ACCEPT THE TESTIMONY OF THE GOVERNMENT EMPLOYEE AND TO GIVE THAT

TESTIMONY WHATEVER WEIGHT, IF ANY, YOU FIND IT DESERVES.

PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF

THE DEFENDANT HAS PLEADED NOT GUILTY TO THE CHARGES IN THE

INDICTMENT.

AS A RESULT OF THE DEFENDANT'S PLEAS OF NOT GUILTY, THE BURDEN IS

ON THE PROSECUTION TO PROVE THE DEFENDANT IS GUILTY BEYOND A

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REASONABLE DOUBT. THIS BURDEN NEVER SHIFTS TO THE DEFENDANT FOR

THE SIMPLE REASON THAT THE LAW NEVER IMPOSES UPON THE DEFENDANT IN

A CRIMINAL CASE THE BURDEN OR DUTY OF TESTIFYING, OR CALLING ANY

WITNESSES OR LOCATING OR PRODUCING ANY EVIDENCE.

THE LAW PRESUMES THE DEFENDANT TO BE INNOCENT OF ALL THE

CHARGES AGAINST HIM. I THEREFORE INSTRUCT YOU THAT THE DEFENDANT IS

TO BE PRESUMED BY YOU TO BE INNOCENT THROUGHOUT YOUR

DELIBERATIONS UNTIL SUCH TIME, IF IT EVER COMES, THAT YOU AS A JURY ARE

SATISFIED THAT THE GOVERNMENT HAS PROVEN HIM GUILTY BEYOND A

REASONABLE DOUBT.

THE DEFENDANT BEGAN THE TRIAL HERE WITH A CLEAN SLATE. THIS

PRESUMPTION OF INNOCENCE ALONE IS SUFFICIENT TO ACQUIT THE

DEFENDANT UNLESS YOU AS JURORS ARE UNANIMOUSLY CONVINCED BEYOND

A REASONABLE DOUBT OF HIS GUILT, AFTER A CAREFUL AND IMPARTIAL

CONSIDERATION OF ALL OF THE EVIDENCE IN THIS CASE. IF THE GOVERNMENT

FAILS TO SUSTAIN ITS BURDEN, YOU MUST FIND THE DEFENDANT NOT GUILTY.

THIS PRESUMPTION WAS WITH THE DEFENDANT WHEN THE TRIAL BEGAN

AND REMAINS WITH HIM EVEN NOW AS I SPEAK TO YOU AND WILL CONTINUE

WITH THE DEFENDANT INTO YOUR DELIBERATIONS UNLESS AND UNTIL YOU

ARE CONVINCED THAT THE GOVERNMENT HAS PROVEN HIS GUILT BEYOND A

REASONABLE DOUBT.

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DEFENDANT'S RIGHT NOT TO TESTIFY

THE DEFE1'-ITIANT, DANIEL KARRON, DID NOT TESTIFY IN THIS CASE.

UNDER OUR CONSTITUTION, A DEFENDANT HAS NO OBLIGATION TO TESTIFY OR

TO PRESENT ANY EVIDENCE, BECAUSE IT IS THE GOVERNMENT'S BURDEN TO

PROVE THE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT. THAT

BURDEN REMAINS WITH THE GOVERNMENT THROUGHOUT THE ENTIRE TRIAL

AND NEVER SHIFTS TO THE DEFENDANT. THE DEFENDANT IS NEVER REQUIRED

TO PROVE THAT HE IS INNOCENT.

YOU MAY NOT ATTACH ANY SIGNIFICANCE TO THE FACT THAT THE

DEFENDANT DID NOT TESTIFY. NO ADVERSE INFERENCE AGAINST HIM MAY BE

DRAWN BY YOU BECAUSE HE DID NOT TAKE THE WITNESS STAND. YOU MAY

NOT CONSIDER THIS AGAINST THE DEFEl'mANT IN ANY WAY IN YOUR

DELIBERATIONS IN THE JURY ROOM.

REASONABLE DOUBT

I HAVE SAID THAT THE GOVER,'JMENT MUST PROVE THAT THE

DEFENDANT IS GUILTY BEYOND A REASONABLE DOUBT. THE QUESTION

NATURALLY IS, "WHAT IS A REASONABLE DOUBT?" THE WORDS ALMOST

DEFINE THEMSELVES. IT IS A DOUBT BASED UPON REASON AND COMMON

SENSE. IT IS A DOUBT THAT A REASONABLE PERSON HAS AFTER CAREFULLY

WEIGHING ALL OF THE EVIDENCE. IT IS A DOUBT WHICH WOULD CAUSE A

REASONABLE PERSON TO HESITATE TO ACT IN A MATTER OF IMPORTANCE IN

HIS OR HER PERSONAL LIFE. PROOF BEYOND A REASONABLE DOUBT MUST,

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THEREFORE, BE PROOF OF SUCH A CONVINCING CHARACTER THAT A

REASONABLE PERSON WOULD NOT HESITATE TO RELY AND ACT UPON IT IN THE

MOST IMPORTANT OF HIS OWN AFFAIRS. A REASONABLE DOUBT IS NOT A

CAPRICE OR WHIM; IT IS NOT A SPECULATION OR SUSPICION. IT IS NOT AN

EXCUSE TO AVOID THE PERFORMANCE OF AN UNPLEASANT DUTY. AND IT IS

NOT SYMPATHY.

IN A CRIMINAL CASE, THE BURDEN IS AT ALL TIMES UPON THE

GOVERNMENT TO PROVE GUILT BEYOND A REASONABLE DOUBT. THE LAW

DOES NOT REQUIRE THAT THE GOVERNMENT PROVE GUILT BEYOND ALL

POSSIBLE DOUBT; PROOF BEYOND A REASONABLE DOUBT IS SUFFICIENT TO

CONVICT. THIS BURDEN NEVER SHIFTS TO THE DEFENDANT, WHICH MEANS

THAT IT IS AL WAYS THE GOVERNMENT'S BURDEN TO PROVE EACH OF THE

ELEMENTS OF THE CRIMES CHARGED BEYOND A REASONABLE DOUBT.

IF, AFTER FAIR AND IMPARTIAL CONSIDERATION OF ALL OF THE

EVIDENCE, YOU HAVE A REASONABLE DOUBT, IT IS YOUR DUTY TO ACQUIT THE

DEFENDANT. ON THE OTHER HAND, IF AFTER FAIR AND IMPARTIAL

CONSIDERATION OF ALL THE EVIDENCE, YOU ARE SATISFIED OF THE

DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT, YOU SHOULD VOTE TO

CONVICT.

SYMPATHY

UNDER YOUR OATH AS JURORS YOU ARE NOT TO BE SWAYED BY

SYMPATHY. YOU ARE TO BE GUIDED SOLELY BY THE EVIDENCE IN THIS CASE,

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AND THE CRUCIAL, HARD-CORE QUESTION THAT YOU MUST ASK YOURSELVES

AS YOU SIFT THROUGH THE EVIDENCE IS: HAS THE GOVERNMENT PROVEN THE

GUILT OF THE DEFENDANT BEYOND A REASONABLE DOUBT?

IT IS FOR YOU ALONE TO DECIDE WHETHER THE GOVERNMENT HAS

PROVEN THAT THE DEFENDANT IS GUILTY OF THE CRIMES CHARGED SOLELY ON

THE BASIS OF THE EVIDENCE AND SUBJECT TO THE LAW AS I CHARGE YOU. IT

MUST BE CLEAR TO YOU THAT ONCE YOU LET FEAR OR PREJUDICE OR BIAS OR

SYMPATHY INTERFERE WITH YOUR THINKING, THERE IS A RISK THAT YOU WILL

NOT ARRIVE AT A TRUE AND JUST VERDICT.

IF YOU HAVE A REASONABLE DOUBT AS TO THE DEFENDANT'S GUILT, YOU

SHOULD NOT HESITATE FOR ANY REASON TO FIND A VERDICT OF ACQUITTAL.

BUT ON THE OTHER HAND, IF YOU SHOULD FIND THAT THE GOVERNMENT HAS

MET ITS BURDEN OF PROVING THE DEFENDANT'S GUILT BEYOND A

REASONABLE DOUBT, YOU SHOULD NOT HESITATE BECAUSE OF SYMPATHY OR

ANY OTHER REASON TO RENDER A VERDICT OF GUILTY.

PUNISHMENT

THE QUESTION OF POSSIBLE PUNISHMENT OF THE DEFENDANT IS OF NO

CONCERN TO THE JURY AND SHOULD NOT, IN Al\TY SENSE, ENTER INTO OR

INFLUENCE YOUR DELIBERATIONS. THE DUTY OF IMPOSING A SENTENCE ON

ANY CONVICTED DEFENDANT RESTS EXCLUSIVELY UPON THE COURT -- THAT IS,

UPON ME. YOUR FUNCTION IS TO WEIGH THE EVIDENCE IN THE CASE AND TO

DETERMINE WHETHER OR NOT THE DEFENDANT IS GUILTY BEYOND A

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REASONABLE DOUBT, SOLELY ON THE BASIS OF SUCH EVIDENCE. UNDER YOUR

OATH AS mRORS, YOU CAl'I"NOT ALLOW A CONSIDERATION OF THE PUNISHMENT

WHICH MAY BE IMPOSED UPON THE DEFENDANT, IF HE IS CONVICTED, TO

INFLUENCE YOUR VOTE IN ANY WAY, OR, IN ANY SENSE, TO ENTER INTO YOUR

DELIBERATIONS.

Il'<'OICTMENT IS NOT EVIDENCE

NOW, WITH THESE PRELIMINARY INSTRUCTIONS IN MIND, LET US TURN TO

THE CHARGE AGAINST THE DEFENDANT, AS CONTAINED IN THE INDICTMENT. I

REMIND YOU THAT AN INDICTMENT ITSELF IS NOT EVIDENCE. IT MERELY

DESCRIBES THE CHARGE MADE AGAINST THE DEFENDANT. IT IS AN

ACCUSATION. IT MAY NOT BE CONSIDERED BY YOU AS ANY EVIDENCE OR

PROOF OF THE GUILT OF THE DEFENDANT. ONLY THE EVIDENCE OR THE LACK

OF EVIDENCE PRESENTED HERE AT TRIAL BEFORE YOU IS RELEVANT TO THAT

ISSUE.

THE INDICTMENT

THE DEFENDANT, DANIEL KARRON, IS FORMALLY CHARGED IN AN

INDICTMENT WHICH CONTAINS ONE COUNT. BEFORE YOU BEGIN YOUR

DELIBERATIONS, YOU WILL BE PROVIDED WITH A COPY OF THE INDICTMENT

CONTAINING THE CHARGE.

COUNT ONE OF THE INDICTMENT CHARGES THAT FROM AT LEAST IN OR

ABOUT OCTOBER 2001, UP THROUGH AND INCLUDING IN OR ABOUT ruNE 2003,

DANIEL B. KARRON, THE PRESIDENT AND CHIEF TECHNICAL OFFICER OF A

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COMPANY CALLED COMPUTER AIDED SURGERY, INC. (CASI), INTENTIONALLY

MISAPPLIED $5,000 AND MORE IN THE CARE, CUSTODY Al\'D CONTROL OF CASI,

WHILE IT WAS THE BENEFICIARY OF A FEDERAL GRANT OF MORE THAN $10,000 A

YEAR FROM THE NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY, A

FEDERAL ENTITY.

COUNT ONE

THE INDICTMENT READS AS FOLLOWS:

[THE COURT WILL READ THE INDICTMENT}

TITLE 18, UNITED STATES CODE, SECTION 666,READS, INPERTINENTPART,AS

FOLLOWS:

§ 666. Theft or bribery concerning programs receiving Federal funds

(a) Whoever, if the circumstance described in subsection (b) of this section exists-

(A) embezzles, steals, obtains by fraud, or otherwise without authority

knowingly converts to the use of any person other than the rightful owner or intentionally
misapplies, property that-

(i) is valued at $5,000 or more, and

(ii) is owned by, or is under the care, custody, or control of such

organization, government, or agency;

- is guilty of a crime.

(b) The circumstance referred to in subsection (a) of this section is that the
organization, government, or agency receives, in anyone year period, benefits in excess
of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee,
insurance, or other form of Federal assistance.

(c) This section does not apply to bona fide salary, wages, fees, or other
compensation paid, or expenses paid or reimbursed, in the usual course of business.

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COUNT ONE: THEFT OR MISAPPLICATION CONCERNING PROGRAMS

RECEIVING FEDERAL FUNDS
GENERAL INSTRUCTIONS (18 U.S.C. § 666)

IN ORDER TO SUSTAIN ITS BURDEN OF PROOF WITH RESPECT TO THE

ALLEGATION IN COUNT ONE, THE GOVERl"JMENT MUST PROVE BEYOND A

REASONABLE DOUBT THE FOLLOWING FIVE ELEMENTS:

FIRST, AT THE TIME ALLEGED IN THE INDICTMENT, THE DEFENDANT WAS

AN AGENT OF COMPUTER AIDED SURGERY, INC., OR CASI;

SECOND, IN A ONE-YEAR PERIOD, CASI RECEIVED A FEDERAL GRANT IN

EXCESS OF $10,000;

THIRD, DURING THAT ONE YEAR PERIOD, THE DEFENDANT WITHOUT

AUTHORITY INTENTIONALLY MISAPPLIED THE GRANT MONEY;

FOURTH, THE MISAPPLIED GRANT MONEY WAS UNDER THE CARE,

CUSTODY, OR CONTROL OF, CASI;

FIFTH, THE VALUE OF THE MONEY INTENTIONALLY MISAPPLIED BY THE

DEFENDANT WAS AT LEAST $5,000.

LET US NOW SEPARA TELY CONSIDER THESE FIVE ELEMENTS.

FIRST ELEMENT: DEFENDANT WAS AN AGENT OF CASI

THE FIRST ELEMENT THE GOVERNMENT MUST PROVE BEYOND A

REASONABLE DOUBT IS THAT AT THE TIME ALLEGED IN THE INDICTMENT, THE

DEFENDANT WAS AN AGENT OF CAS!.

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THE TERM "AGENT" MEANS A PERSON AUTHORIZED TO ACT ON BEHALF

OF AN ORGANIZATION. EMPLOYEES, PARTNERS, DIRECTORS, OFFICERS,

MANAGERS, AND REPRESENTATIVES ARE ALL AGENTS OF AN ORGANIZATION.

SECO]'l.'D ELEMENT: CASI RECEIVED FEDERAL FUNDS

THE SECOND ELEMENT THE GOVERNMENT MUST PROVE BEYOND A

REASONABLE DOUBT IS THAT IN A ONE-YEAR PERIOD, CASI RECEIVED FEDERAL

BENEFITS IN EXCESS OF $10,000.

TO PROVE THIS ELEMENT, THE GOVERNMENT MUST ESTABLISH THAT CASI

RECEIVED, DURING A ONE-YEAR PERIOD, BENEFITS IN EXCESS OF $10,000 Ul\TDER

A FEDERAL PROGRAM INVOLVING A GRANT, CONTRACT, SUBSIDY, LOAN,

GUARANTEE, INSURANCE, OR SOME OTHER FORM OF FEDERAL ASSISTANCE.

THE ONE-YEAR PERIOD MUST BEGIN NO MORE THAN 12 MONTHS BEFORE

THE DEFENDANT COMMITTED THE ACTS CHARGED IN THE INDICTMENT AND

MUST END NO MORE THAN 12 MONTHS AFTER THOSE ACTS. YOU CAN CHOOSE

ANY PERIOD OF FEDERAL FUNDING YOU WANT AS LONG AS YOU UNANIMOUSLY

FIND THAT THE ACTS OF MISAPPLICATION CHARGED IN THE INDICTMENT

OCCURRED IN THAT ONE YEAR PERIOD.

THIRD ELEMENT: INTENTIONAL MISAPPLICATION OF MONEY

THE THIRD ELEMENT THE GOVERNMENT MUST PROVE BEYOND A

REASONABLE DOUBT IS THAT THE DEFENDANT WITHOUT AUTHORITY

INTENTIONALLY MISAPPLIED MONEY. TO INTENTIONALLY MISAPPLY MONEY

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MEANS TO USE MONEY UNDER THE CONTROL OF CASI KNOWING THAT SUCH

USE IS UNAUTHORIZED OR UNJUSTIFIABLE OR WRONGFUL. INTENTIONAL

MISAPPLICATION INCLUDES THE WRONGFUL USE OF THE MONEY FOR A

PURPOSE THE DEFENDANT KNEW WAS UNAUTHORIZED, EVEN IF SUCH USE

BENEFITED CASI IN SOME WAY.

IN THIS CASE, TO INTENTIONALL Y MISAPPLY MONEY MEANS TO

INTENTIONALLY APPLY THE GRANT MONEY RECEIVED BY CAS I IN A MANNER

WHICH THE DEFENDANT KNEW WAS UNAUTHORIZED UNDER THE TERMS AND

CONDITIONS OF THE GRANT. MISAPPLICATION OF MONEY, HOWEVER, DOES NOT

APPLY TO BONA FIDE SALARY, WAGES, FRINGE BENEFITS, OR OTHER

COMPENSATION PAID, OR EXPENSES PAID OR REIMBURSED, IN THE USUAL

COURSE OF BUSINESS.

AS I SAID, THE GOVERNMENT MUST PROVE BEYOND A REASONABLE

DOUBT THAT THE DEFENDANT ACTED INTENTIONALLY IN MISAPPLYING GRANT

MONEY. TO FIND THAT THE DEFENDANT ACTED INTENTIONALLY, YOU MUST BE

SATISFIED BEYOND A REASONABLE DOUBT THAT THE DEFENDANT ACTED

DELIBERATELY AND PURPOSEFULLY. THAT IS, THE DEFENDANT'S

MISAPPLICATION MUST HAVE BEEN THE PRODUCT OF THE DEFENDANT'S

CONSCIOUS OBJECTIVE TO SPEND THE MONEY FOR AN UNAUTHORIZED

PURPOSE, RATHER THAN THE PRODUCT OF A MISTAKE OR ACCIDENT OR SOME

OTHER INNOCENT REASON.

FOURTH ELEMENT: MISAPPLIED GRANT MONEY UNDER THE CONTROL OF

CASI
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THE FOURTH ELEMENT THE GOVERNMENT MUST PROVE BEYOND A

REASONABLE DOUBT IS THAT THE GRANT MONEY THAT WAS INTENTIONALLY

MISAPPLIED WAS IN THE CARE, CUSTODY, OR CONTROL OF, CASI. ALTHOUGH

THE WORDS "CARE," "CUSTODY," AND "CONTROL" HAVE SLIGHTLY DIFFERENT

MEANINGS, FOR THE PURPOSES OF THIS ELEMENT, THEY EXPRESS A SIMILAR

IDEA. ALL THAT IS NECESSARY IS THAT CASI HAD CONTROL OVER AND

RESPONSIBILITY FOR THE GRANT MONEY.

FIFTH ELEMENT: VALUE OF MISAPPLIED GRANT MONEY

THE FIFTH AND FINAL ELEMENT THE GOVERNMENT MUST PROVE BEYOl';l)

A REASONABLE DOUBT IS THAT THE VALUE OF THE INTENTIONALLY

MISAPPLIED MONEY WAS AT LEAST $5,000.

THE WORD "VALUE" MEANS FACE, PAR OR MARKET VALUE, OR COST

PRICE, EITHER WHOLESALE OR RETAIL, WHICHEVER IS GREATER. "MARKET

VALUE" MEANS THE PRICE A WILLING BUYER WOULD PAY A WILLING SELLER

AT THE TIME THE PROPERTY WAS INTENTIONALLY MISAPPLIED.

YOU MAY AGGREGATE OR ADD UP THE VALUE OF MONEY

INTENTIONALLY MISAPPLIED FROM A SERIES OF ACTS BY THE DEFENDANT TO

MEET THIS $5,000 REQUIREMENT, SO LONG AS YOU FIND THAT EACH ACT OF

INTENTIONAL MISAPPLICATION WAS PART OF A SINGLE SCHEME BY THE

DEFENDANT TO MISAPPLY GRANT MONEY LJNDER THE CARE, CUSTODY, AND

CONTROL OF CASI.

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THE GOVERNMENT DOES NOT HAVE TO PROVE THAT THE PARTICULAR

MONEY MISAPPLIED BY THE DEFENDANT WAS THE MONEY RECEIVED BY CASI

AS A FEDERAL GRANT. IN OTHER WORDS, IT IS NOT NECESSARY FOR THE

GOVERNMENT TO SHOW THAT THE INTENTIONALLY MISAPPLIED MONEY WAS

TRACEABLE TO THE ACTUAL FEDERAL GRANT RECEIVED BY THE

ORGANIZATION. THUS, IF THE GOVERNMENT ESTABLISHES THAT CASI

RECEIVED MORE THAN $10,000 IN FEDERAL AID DURING A ONE-YEAR PERIOD,

AND THAT, DURING THAT PERIOD, THE DEFENDANT MISAPPLIED FUNDS VALUED

AT MORE THAN $5,000 UNDER THE CARE, CUSTODY, AND CONTROL OF CASI, THE

GOVERNMENT WILL HAVE SATISFIED ITS BURDEN WITH RESPECT TO THIS

ELEMENT. MONEY IS FUNGIBLE, AND THE GOVERNMENT NEED NOT TRACE THE

$5,000 OR MORE ALLEGED TO BE INTENTIONALLY MISAPPLIED BACK TO THE

FEDERAL GRANT.

VENUE

IN ADDITION TO THE ELEMENTS OF THE OFFENSES THAT I HAVE

EXPLAINED, YOU MUST CONSIDER WHETHER ANY ACT IN FURTHERANCE OF THE

CRIME CHARGED IN THE INDICTMENT OCCURRED WITHIN THE SOUTHERN

DISTRICT OF NEW YORK. AS I HAVE INSTRUCTED YOU, THE SOUTHERN DISTRICT

OF NEW YORK INCLUDES MANHATTAN AND THE BRONX.

I SHOULD NOTE THAT ON THIS ISSUE -- A1\TD THIS ISSUE ALONE -- THE

GOVERNMENT NEED NOT PROVE VENUE BEYOND A REASONABLE DOUBT, BUT

ONLY BY A MERE PREPONDERANCE OF THE EVIDENCE. THUS, THE

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GOVERNMENT HAS SATISFIED ITS VENUE OBLIGATIONS IF YOU CONCLUDE THAT

IT IS MORE LIKELY THAN NOT THAT ANY ACT IN FURTHERANCE OF THE CRIME

CHARGED OCCURRED IN THE SOUTHERN DISTRICT OF NEW YORK.

PREPARATION OF WITNESSES

YOU HAVE HEARD EVIDENCE DURING THE TRIAL THAT WITNESSES HAVE

DISCUSSED THE FACTS OF THE CASE AND THEIR TESTIMONY WITH THE

LAWYERS BEFORE THE WITNESSES APPEARED IN COURT.

ALTHOUGH YOU MAY CONSIDER THAT FACT WHEN YOU ARE

EVALUATING A WITNESS'S CREDIBILITY, I SHOULD TELL YOU THAT THERE IS

NOTHING EITHER UNUSUAL OR IMPROPER ABOUT A WITNESS MEETING WITH

LAWYERS BEFORE TESTIFYING SO THAT THE WITNESS CAN BE AWARE OF THE

SUBJECTS HE OR SHE WILL BE QUESTIONED ABOUT, FOCUS ON THOSE SUBJECTS

AND HAVE THE OPPORTUNITY TO REVIEW RELEVANT EXHIBITS BEFORE BEING

QUESTIONED ABOUT THEM. SUCH CONSULTATION HELPS CONSERVE YOUR

TIME AND THE COURT'S TIME. IN FACT, IT WOULD BE UNUSUAL FOR A LAWYER

TO CALL A WITNESS WITHOUT SUCH CONSULTATION.

AGAIN, THE WEIGHT YOU GIVE TO THE FACT OR THE NATURE OF THE

WITNESS'S PREPARATION FOR HIS OR HER TESTIMONY AND WHAT INFERENCES

YOU DRAW FROM SUCH PREPARATION ARE MATTERS COMPLETELY WITHIN

YOUR DISCRETION.

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EXPERT TESTIMONY

YOU HAVE HEARD TESTIMONY FROM WHAT WE CALL AN EXPERT

WITNESS. AN EXPERT WITNESS IS A PERSON WHO BY EDUCATION OR

EXPERIENCE HAS ACQUIRED LEARNING OR EXPERIENCE IN A SCIENCE OR A

SPECIALIZED AREA OF K.!"\fOWLEDGE. SUCH WITNESSES ARE PERMITTED TO GIVE

THEIR OPINIONS AS TO RELEVANT MATTERS IN WHICH THEY PROFESS TO BE

EXPERT AND GIVE THEIR REASONS FOR THEIR OPINIONS. EXPERT TESTIMONY IS

PRESENTED TO YOU ON THE THEORY THAT SOMEONE WHO IS EXPERIENCED IN

THE FIELD CAN ASSIST YOU IN UNDERSTANDING THE EVIDENCE OR IN

REACHING AN INDEPENDENT DECISION ON THE FACTS.

NOW, YOUR ROLE IN JUDGING CREDIBILITY APPLIES TO EXPERTS AS WELL

AS TO OTHER WITNESSES. YOU SHOULD CONSIDER THE EXPERT OPINIONS THAT

WERE RECEIVED IN EVIDENCE IN THIS CASE AND GIVE THEM AS MUCH OR AS

LITTLE WEIGHT AS YOU THINK THEY DESERVE. IF YOU SHOULD DECIDE THAT

THE OPINION OF AN EXPERT WAS NOT BASED ON SUFFICIENT EDUCATION OR

EXPERIENCE OR ON SUFFICIENT DATA, OR IF YOU SHOULD CONCLUDE THAT THE

TRUSTWORTHINESS OR CREDIBILITY OF AN EXPERT IS QUESTIONABLE FOR ANY

REASON, OR IF THE OPINION OF THE EXPERT WAS OUTWEIGHED, IN YOUR

JUDGMENT, BY OTHER EVIDENCE IN THE CASE, THEN YOU MIGHT DISREGARD

THE OPINION OF THE EXPERT ENTIRELY OR IN PART.

ON THE OTHER HAND, IF YOU FIND THE OPINION OF AN EXPERT IS BASED

ON SUFFICIENT DATA, EDUCATION AND EXPERIENCE, AND THE OTHER

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EVIDENCE DOES NOT GIVE YOU REASON TO DOUBT HIS CONCLUSIONS, YOU

WOULD BE JUSTIFIED IN PLACING GREAT RELIANCE ON HIS TESTIMONY.

PERSONS NOT ON TRIAL

IF YOU CONCLUDE THAT OTHER PERSONS MAY HAVE BEEN INVOLVED IN

CRIMINAL ACTS CHARGED IN THE INDICTMENT, YOU MAY NOT DRAW ANY

INFERENCE, FAVORABLE OR UNFAVORABLE, TOWARD EITHER THE

GOVERNMENT OR THE DEFENDANT FROM THE FACT THAT THOSE PERSONS ARE

NOT NAMED AS DEFENDANTS IN THIS INDICTMENT OR ARE NOT PRESENT AT

THIS TRIAL.

IN ADDITION, YOU SHOULD NOT SPECULATE AS TO THE REASONS THAT

INDIVIDUALS OTHER THAN THE DEFENDANT ARE NOT DEFENDANTS IN THIS

TRIAL. THOSE MATTERS ARE WHOLLY OUTSIDE YOUR CONCERN AND HAVE NO

BEARING ON YOUR FUNCTION AS JURORS IN THIS TRIAL.

UNCALLED WITNESS - EQUALLY A VAILABLE TO BOTH SIDES

BOTH THE GOVERNMENT AND THE DEFENDANT HAVE THE SAME POWER

TO SUBPOENA WITNESSES TO TESTIFY ON THEIR BEHALF. IF A POTENTIAL

WITNESS COULD HAVE BEEN CALLED BY THE GOVERNMENT OR BY THE

DEFEl\1DANT AND NEITHER PARTY CALLED THE WITNESS, THEN YOU MAY DRAW

THE CONCLUSION THAT THE TESTIMONY OF THE ABSENT WITNESS MIGHT HAVE

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BEEN UNFAVORABLE TO THE GOVERNMENT OR TO THE DEFENDANT OR TO

BOTH PARTIES.

ON THE OTHER HAND, IT IS EQUALLY WITHIN YOUR PROVINCE TO DRAW

NO INFERENCE AT ALL FROM THE FAILURE A PARTY TO CALL A WITNESS.

YOU SHOULD REMEMBER THAT THERE IS NO DUTY ON EITHER SIDE TO

CALL A WITNESS WHOSE TESTIMONY WOULD BE MERELY CUMULATIVE OF

TESTIMONY ALREADY IN EVIDENCE, OR WHO WOULD MERELY PROVIDE

ADDITIONAL TESTIMONY TO FACTS ALREADY IN EVIDENCE.

PARTICULAR INVESTIGATIVE TECHNIQUES NOT REOUIRED

YOU HAVE HEARD REFERENCE, IN THE TESTIMONY AND IN THE

ARGUMENTS OF DEFENSE COUNSEL IN THIS CASE, ABOUT THE FACT THAT

CERTAIN INVESTIGATIVE TECHNIQUES WERE NOT USED BY LAW ENFORCEMENT

AUTHORITIES. THERE IS NO LEGAL REQUIREMENT THAT THE GOVERNMENT

PROVE ITS CASE THROUGH ANY PARTICULAR MEANS. WHILE YOU ARE TO

CAREFULLY CONSIDER THE EVIDENCE PRESENTED BY THE GOVERNMENT, YOU

NEED NOT SPECULATE AS TO WHY THEY USED THE TECHNIQUES THEY DID, OR

WHY THEY DID NOT USE OTHER TECHNIQUES. THE GOVERNMENT IS NOT ON

TRIAL, AND LAW ENFORCEMENT TECHNIQUES ARE NOT YOUR CONCERN.

YOUR CONCERN IS TO DETERMINE WHETHER OR NOT, BASED ON THE

EVIDENCE OR LACK OF EVIDENCE, THE GUILT OF THE DEFENDANT HAS BEEN

PROVEN BEYOND A REASONABLE DOUBT.

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EVIDENCE OF GOOD CHARACTER

THERE IS TESTIMONY IN THIS CASE OF THE PREVIOUS GOOD CHARACTER

OF THE DEFENDANT. THIS TESTIMONY IS NOT TO BE TAKEN BY YOU AS THE

WITNESSES' OPINION AS TO WHETHER THE DEFENDANT IS GUILTY OR NOT

GUILTY. THAT QUESTION IS FOR YOU ALONE TO DETERMINE. INDEED, SOME OF

THE CHARACTER WITNESSES TESTIFIED THAT THEY HAD NO DIRECT, PERSONAL

KNOWLEDGE OF THE FACTS AND CIRCUMSTANCES WHICH WERE THE FOCUS OF

THIS CASE. YOU SHOULD CONSIDER EVIDENCE OF GOOD CHARACTER

TOGETHER WITH ALL OTHER FACTS AND ALL THE OTHER EVIDENCE IN

DETERMINING WHETHER THE PROSECUTION HAS SUSTAINED ITS BURDEN OF

PROVING THE DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT. EVIDENCE

OF GOOD CHARACTER MAY IN ITSELF CREATE A REASONABLE DOUBT WHERE

WITHOUT SUCH EVIDENCE NO REASONABLE DOUBT EXISTS. BUT IF, FROM ALL

THE EVIDENCE, YOU ARE SATISFIED BEYOND A REASONABLE DOUBT THAT THE

DEFENDANT IS GUILTY, A SHOWING THAT THE DEFENDANT PREVIOUSLY

ENJOYED A REPUTATION OF GOOD CHARACTER DOES NOT JUSTIFY OR EXCUSE

THE OFFENSE, AND YOU SHOULD NOT ACQUIT THE DEFENDANT MERELY

BECAUSE YOU BELIEVE THAT HE HAD BEEN A PERSON OF GOOD REPUTE.

CHARTS AND SUMMARIES

SOME OF THE EXHIBITS THAT WERE ADMITTED INTO EVIDENCE WERE

CHARTS. THESE CHARTS WERE INTRODUCED BASICALLY AS SUMMARIES. THEY

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ARE NOT DIRECT EVIDENCE. THEY ARE SUMMARIES OF THE EVIDENCE, AND

ARE ADMITTED AS AIDS TO YOU. THEY ARE NOT IN AND OF THEMSELVES ANY

EVIDENCE. THEY ARE INTENDED ONLY TO BE OF ASSISTANCE TO YOU IN

CONSIDERING THE EVIDENCE DURING YOUR DELIBERATIONS.

IN PRESENTING THE EVIDENCE WHICH YOU HAVE HEARD, IT IS CLEARLY

EASIER AND MORE CONVENIENT TO UTILIZE SUMMARY CHARTS THAN TO PLACE

ALL OF THE RELEVANT DOCUMENTS IN FRONT OF YOU. IT IS UP TO YOU TO

DECIDE WHETHER THOSE CHARTS FAIRLY AND CORRECTLY PRESENT THE

INFORMATION IN THE TESTIMONY A:t\'D THE DOCUMENTS ADMITTED IN

EVIDENCE. THE CHARTS ARE NOT TO BE CONSIDERED BY YOU AS DIRECT PROOF

OF ANYTHING. THEY ARE MERELY GRAPHIC DEMONSTRATIONS OF WHAT THE

UNDERLYING TESTIMONY AND DOCUMENTS ARE.

TO THE EXTENT THAT THE CHARTS CONFORM WITH WHAT YOU

DETERMINE THE UNDERLYING EVIDENCE TO BE, YOU SHOULD ACCEPT THEM.

BUT ONE WAY OR THE OTHER, REALIZE THAT THE CHART IS NOT IN AND OF

ITSELF DIRECT EVIDENCE. THEY ARE MERELY VISUAL AIDS. THEY ARE

NOTHING MORE.

RIGHT TO SEE EXHIBITS AND HEAR TESTIMONY; COMMUNICATIONS WITH

COURT

YOU ARE ABOUT TO GO INTO THE JURY ROOM AND BEGIN YOUR

DELIBERATIONS. IF DURING THOSE DELIBERATIONS YOU WANT TO SEE OR

HEAR ANY OF THE EXHIBITS, THEY WILL BE SENT TO YOU IN THE JURY ROOM

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UPON REQUEST. IF YOU WANT ANY OF THE TESTIMONY READ, THAT CAN ALSO

BE DONE. BUT PLEASE REMEMBER THAT IT IS NOT ALWAYS EASY TO LOCATE

WHAT YOU MIGHT WANT, SO TRY TO BE AS SPECIFIC AS YOU POSSIBLY CAN IN

REQUESTING EXHIBITS OR PORTIONS OF THE TESTIMONY WHICH YOU MAY

WANT.

YOUR REQUESTS FOR EXHIBITS OR TESTIMONY -- IN FACT ANY

COMMUNICATION WITH THE COURT -- SHOULD BE MADE TO ME IN WRITING,

SIGNED BY YOUR FOREPERSON, AND GIVEN TO ONE OF THE MARSHALS. I WILL

RESPOND TO ANY QUESTIONS OR REQUESTS YOU HAVE AS PROMPTLY AS

POSSIBLE EITHER IN WRITING OR BY HAVING YOU RETURN TO THE COURTROOM

SO I CAN SPEAK TO YOU IN PERSON. IN ANY EVENT, DO NOT, IN ANY NOTE OR

OTHERWISE, TELL ME OR ANYONE ELSE HOW YOU OR ANY GROUP OF YOU HAVE

VOTED OR PROPOSE TO VOTE ON THE ISSUE OF THE DEFENDANT'S GUILT UNTIL

AFTER A UNANIMOUS VERDICT IS REACHED. IN OTHER WORDS, DO NOT TELL

ME OR ANYONE ELSE WHAT YOUR NUMERICAL DIVISION IS -- HOW MANY THINK

ONE WAY AND HOW MANY THINK ANOTHER -- IF YOU ARE DIVIDED AT ANY

POINT ON HOW TO DECIDE THE CASE BECAUSE UNTIL YOU HAVE REACHED A

VERDICT, YOU HAVE NO VERDICT.

SUBMITTING THE INDICTMENT

I AM SENDING A COpy OF THE INDICTMENT INTO THE JURy ROOM FOR

YOU TO HAVE DURING YOUR DELIBERATIONS. YOU MAY USE IT TO READ THE

CRIME WITH WHICH THE DEFENDANT IS CHARGED WITH COMMITTING. YOU

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ARE REMINDED, HOWEVER, THAT AN INDICTMENT IS MERELY AN ACCUSATION

AND IS NOT TO BE USED BY YOU AS ANY PROOF OF THE CONDUCT CHARGED.

DUTY TO CONSULT AND NEED FOR UNANIMITY

AS ALREADY EXPLAINED IN THESE INSTRUCTIONS, THE GOVERNMENT, TO

PREVAIL ON THE CHARGE IN THE INDICTMENT, MUST PROVE THE ESSENTIAL

ELEMENTS OF THAT COUNT IN THE INDICTMENT BEYOND A REASONABLE

DOUBT. IF IT SUCCEEDS, YOUR VERDICT SHOULD BE GUILTY AS TO THAT

COUNT; IF IT FAILS, IT SHOULD BE NOT GUILTY AS TO THAT COUNT. TO REPORT

A VERDICT, YOUR VOTE MUST BE UNANIMOUS.

YOUR FUNCTION IS TO WEIGH THE EVIDENCE IN THE CASE AND

DETERMINE WHETHER OR NOT THE DEFENDANT IS GUILTY OF THE COUNT IN

THE INDICTMENT, SOLELY UPON THE BASIS OF SUCH EVIDENCE.

VERDICT FORM

NOW, TO AID YOU IN YOUR DELIBERATIONS, AND SO THAT A PROPER

RECORD CAN BE MADE OF YOUR VERDICT, THE COURT HAS PREPARED A FORM

OF VERDICT. I AM ASKING THAT THE VERDICT FORM BE SIGNED BY THE

FOREPERSON AND BE FILED WITH THE COURT. WHEN YOU HAVE UNANIMOUSLY

AGREED ON YOUR VERDICT, THEN THE FOREPERSON WILL FILL IT IN AND SIGN

IT, AND YOU TELL THE MARSHAL YOU HAVE REACHED A VERDICT. THEN YOU

WILL BE ASKED TO COME BACK INTO OPEN COURT AND THE CLERK WILL ASK

WHETHER YOUR VERDICT IS UNANIMOUS.

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[DISTRIBUTE AND READ VERDICT FORM]

NOW, EACH JUROR IS ENTITLED TO HIS OR HER OPINION; EACH SHOULD,

HOWEVER, EXCHANGE VIEWS WITH HIS OR HER FELLOW JURORS. THAT IS THE

VERY PURPOSE OF JURY DELIBERATION -- TO DISCUSS AND CONSIDER THE

EVIDENCE; TO CONSIDER THE ARGUMENTS OF FELLOW JURORS; TO PRESENT

YOUR INDIVIDUAL VIEWS; TO CONSULT WITH ONE ANOTHER; AI\TD TO REACH AN

AGREEMENT BASED SOLELY AND ENTIRELY ON THE EVIDENCE OR THE LACK OF

EVIDENCE -- IF YOU CAN DO SO WITHOUT VIOLATION TO YOUR OWN

INDIVIDUAL JUDGMENT.

EACH OF YOU MUST DECIDE THE CASE FOR YOURSELF, AFTER

CONSIDERATION WITH YOUR FELLOW JURORS OF THE EVIDENCE IN THE CASE.

BUT YOU SHOULD NOT HESITATE TO CHANGE Al'i OPINION WHICH, AFTER

DISCUSSION WITH YOUR FELLOW JURORS, APPEARS INCORRECT.

HOWEVER, IF, AFTER CAREFULLY CONSIDERING ALL THE EVIDENCE AND

THE ARGUMENTS OF YOUR FELLOW JURORS, YOU HOLD A CONSCIENTIOUS VIEW

THAT DIFFERS FROM THE OTHERS, YOU ARE NOT TO CHANGE YOUR POSITION

SIMPLY BECAUSE YOU ARE OUTNUMBERED. IF THEY DO NOT CONVINCE YOU

THAT YOUR POSITION IS INCORRECT, YOU SHALL ADHERE TO YOUR POSITION

REGARDLESS OF THE LATENESS OF THE HOUR OR ANY PERSONAL

INCONVENIENCE IT MAY CAUSE YOU.

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YOUR FINAL VOTE MUST REFLECT YOUR CONSCIENTIOUS BELIEF AS TO

HOW THE ISSUES SHOULD BE DECIDED.

CONCLUSION -- CHARGE AS A WHOLE, DUTY TO CONSULT, SELECTION OF A

FOREPERSON

NOW, I HAVE VIRTUALLY FINISHED WITH THE CHARGE AND MY

INSTRUCTIONS TO YOU AND I WANT TO THA:t\JK YOU AGAIN FOR YOUR PATIENCE

AND ATTENTIVENESS. I WILL SEND A COPY OF THE CHARGE IN TO YOU SO THAT

YOU CAN USE IT DURING YOUR DELIBERATIONS. AGAIN, PLEASE REMEMBER

THAT NO SINGLE PART OF THIS CHARGE IS TO BE CONSIDERED IN ISOLATION.

YOU ARE NOT TO CONSIDER ANY ONE ASPECT OF THIS CHARGE OUT OF

CONTEXT. THE ENTIRE CHARGE IS TO BE CONSIDERED AS AN INTEGRATED

STATEMENT AND TO BE TAKEN TOGETHER.

NOW, I SAY THIS NOT BECAUSE I THINK IT IS NECESSARY BUT IT IS THE

TRADITION OF THIS COURT. I ADVISE THE JURORS TO BE POLITE AND

RESPECTFUL TO EACH OTHER AS I AM SURE YOU WILL BE IN THE COURSE OF

YOUR DELIBERATIONS SO THAT EACH JUROR MAY HAVE HIS OR HER POSITION

MADE CLEAR TO ALL THE OTHERS.

THE FOREPERSON HAS NO GREATER AUTHORITY THAN A1'<'Y OTHER JUROR

BUT WILL BE RESPONSIBLE FOR SIGNING ALL COMMUNICATIONS TO THE COURT

AND FOR HANDING THEM TO THE MARSHAL DURING DELIBERATIONS. YOU

SHOULD ELECT ONE PERSON TO ACT AS FOREPERSON AT THE OUTSET OF YOUR

DELIBERATIONS. I SOMETIMES SUGGEST THAT IT IS EASIER TO ELECT JUROR NO.

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1 - THAT IS, MS. YOUNG, BUT SOMETIMES JUROR 1 DOESN'T WANT TO ACT AS

FOREPERSON, SO YOU ALL CAN ELECT WHOMEVER YOU WANT. THAT IS YOUR

PREROGATIVE. THE MAl'.'NER IN WHICH THE JURY CONDUCTS ITS

DELIBERATIONS, OF COURSE, IS COMPLETELY WITHIN YOUR DISCRETION. YOU

MAY FOLLOW ANY PROCEDURE THAT YOU CHOOSE, PROVIDED THAT EACH

JUROR IS PRESENTED WITH AMPLE OPPORTUNITY TO EXPRESS HIS OR HER VIEW.

THAT WAY WHEN YOU DO REACH A VERDICT YOU WILL KNOW THAT IT IS A

JUST ONE, MADE WITH THE FULL PARTICIPATION OF ALL THE JURORS AND THAT

YOU HAVE F AITHFULL Y DISCHARGED YOUR OATH. I REMIND YOU ONCE AGAIN

THAT YOUR DUTY IS TO ACT WITHOUT FEAR OR FAVOR AND THAT YOU MUST

DECIDE THE ISSUES ON TRIAL BASED SOLELY ON THE EVIDENCE AND MY

INSTRUCTIONS ON THE LAW.

THANK YOU.

NOW I WILL HAVE TO ASK YOU TO REMAIN SEATED WHILE I CONFER WITH

COUNSEL TO SEE IF I MISSED PART OF THE CHARGE.

[SWEAR THE MARSHAL.]

[JURY RETIRES]

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